It’s a hassle if someone else claims your child on their tax return, but that doesn’t mean you have to give up.
This happens to people all the time. You go to electronically file your tax return and it gets rejected because someone else has already claimed your child. What do you do? I say fight back, and here’s how.
The first step to fighting back is to make sure that you’re in the right. Ask yourself these questions:
1. Are you the biological parent of the child? Hint: if your answer is “I’ve raised her like my own.” You’re going to have trouble winning. If you’re a grandparent, step parent, aunt or uncle; and the person who claimed the child is the actual parent, you don’t stand much of a chance. (That said, some folks will have a credible case, but I’d suggest professional help here because it is tricky.) To go this route you should be the real parent.
2. Did the child live with you all year? If not all year, for at least over half of the year? If you had custody all year you have a much better shot of winning. You absolutely must have had custody for over half of the year to even think of trying this. If you’re on the border line, where your ex had the child for half the year and you had half, this might not be worth it.
3. Is this good for your child? Generally you’d think that having more money in the household would be good for your child, but if fighting with your ex could cause harm to your child, you might want to stop and think about it a bit.
Step two. Once you’ve determined that you are in the right and that you are entitled to claim your child, then what you need to do is print out, sign and mail that rejected return to the IRS —keeping your child as your dependent on the tax return. When you do this, the IRS has to take it in. They have to look at it and it’s going to throw whoever claimed your child into an audit. If an Earned Income Tax Credit is involved then those audit papers generally run 11 to 22 pages long. (11 pages for a straight EIC audit, 22 for an EIC and head of household audit, they’re the same questions it’s just that 22 pages is more intimidating.)
Here’s the scary part, you’re going to get the same paperwork. It is a little intimidating, but you’re expecting it. Because you’re the custodial parent, that is your child lives with you, you can answer those questions with no problem. People who shouldn’t be claiming your kids can’t answer the questions and that’s why you’ll win. If your kids are in school, you’ll need a document from the school saying they attend and where they live. If they’re too young for school, you can get a statement from the doctor’s office that you’re their parent and you pay their medical bills. You’ll have the resources to prove that you’re the parent.
If you’re reading this and thinking, “I can’t prove I have custody of my kids,” then maybe you shouldn’t be filing for them. You will have to provide some proof: school records, doctor’s files, church documents, day care receipts, health insurance records, something professional. Your Mom or a friend can’t vouch for you.
Once you’ve received the audit papers, completed them and sent them back, then it’s a waiting game. Your ex (or whoever claimed your child) will have to complete the same paperwork. The IRS will examine the papers and determine who had the proper right to claim your child. But since it’s you, you will win.
The big downside to this is that it will take months to settle. Months. On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again. You’re not just solving a problem for one year, you’re preventing future problems as well.
What if you need the money now? That’s the most common question. Sorry, but that’s impossible. What you’ve lost, you can’t get back without a fight. If you have more than one child, and only one was claimed incorrectly, you could file now and at least get part of your refund, then file an amended return later. I don’t recommend doing that, but I also understand sometimes you need the cash now.
If you try doing this as an amended return there are two consequences: first, it will slow everything down even more. You can’t file an amended return until your first return is completely processed. An amended return will take about 16 weeks to run through the system before the whole audit process begins so you’re basically adding 4 to 5 months to the timeline for solving this issue. Second, filing a return and amending to add a child reduces your credibility with the IRS. Your documentation had better be rock solid because you will have no wiggle room for doubt if you submit an amended return to claim your child.
One more thing to consider before you go through with this. Call your ex and talk it out. I’m not crazy, hear me out. You’ve read this far, you know that fighting is a big hassle. Before you go into warrior mode, maybe you can negotiate a peace treaty. What do you stand to gain from this? What does your ex stand to gain? It’s important that you file your returns legally, but with divorced or never married couples, you can split an exemption: the custodial parent claims head of household and EIC, the non-custodial parent claims the child tax credit and the exemption. It could be a good thing for both of you and for your child. (Remember, what’s best for the child?) Instead of going to war, you have your ex amend his/her return and you file your return right after the amendment is accepted. It still is slow, but much faster than going through an audit. And it’s a peaceful solution. (Please, don’t even think of trying this if your ex is dangerous. Safety first.)
Finding out that someone else has claimed your child for taxes can be shocking and financially devastating. The assumption is usually that it’s the ex, but that’s not always the case. When you file to claim your child, you will never be told who the other person is. (Of course, if it’s your ex you’ll probably get an unfriendly phone call so you’ll know.) It’s scary how often it’s not the ex, though. Be sure to protect your child’s social security number. Don’t keep the card in your purse. Don’t share the social security number with anyone. Your child needs your protection. It’s hard enough being a kid, being a kid with a stolen identity is worse.
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Note: Here are some links that might help:
EIC questions of any kind: http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
Hi Amber,
According to the IRS, you may claim your children, but you would be violating your divorce decree. What you should do, is allow your ex to claim the one child as a dependent, but you keep that child for purposes for the earned income tax credit. Now, if your income doesn’t qualify you for the earned income tax credit, you’re pretty much out of luck. Now, as far as the IRS is concerned – you’d win if you claimed that child. I’m not an attorney, but you should talk to your attorney because I suspect your ex might be able to bring you to court for claiming that child.
In my divorce decree, it gives my ex-husband one of the kids. However, he doesn’t have them overnight, he doesn’t visit them, doesn’t call, nothing. Am I entitled to claim both of my kids? I am the primary custodial parent.
Wow I didn’t think about this being a factor to my kids being tooken, from me wow it is a huge role in the picture wow. My mind is puzzled.
Hi Greg,
I think you may have already answered your own question. You said that you won’t go after her for the sake of civility for your daughter. That kind of ends it right there. But, I’m going to give you another answer, just in case. Cover the bases so to say.
Let’s say you decide to go ahead and fight this. Here’s what you would do.
First – make sure you’re in the right. Count the days that your daughter has slept at your house. Be able to prove that she was there at least 50% of the time. Ideally, you want to prove that she was there one more day than your ex. If your ex can prove that your daughter slept at her house one more day than you, then you will lose.
How do you prove this? I bet it’s on your calendar somewhere. What days did you have to go pick her up from Girl Scouts or dance lessons? You probably have notes written down of when you needed to drop her off and where, etc. I once handled a case, it wasn’t the dad who had the calendar, it was his Dad. Turned out, Grampa did a lot of babysitting and he wrote everything down in his calendar. Best evidence ever. Most people don’t have something that exact, but your calendar is a good start.
So, you’ve got your evidence, you know you’re right. Then you mail in your paper return (or amended return if you’ve already filed) and wait. You’ll get your IRS notice asking you to prove your claim – which you’ve got because you prepared before even sending. Your ex will get the same notice.
Truth be told – it’s a pain in the backside, but for $3,000 that’s what you need to do.
Or, if you choose to not do that – because of civility, then be prepared to file first next year, before your ex does. I hate giving that as an answer, but there you have it. Now I keep hearing how the IRS is combatting parents both claiming the same kid, and they’re holding back on refunds, etc. But I still keep hearing how it’s not working. Which brings me back to file first – that’s still your best shot.
Hi Hector,
You have full custody of your boys! You got the audit letter from the IRS, it’s pretty scary looking, I know. But, you are the custodial parent. The boys live with you, they go to school in your neighborhood, you pay their health insurance, etc., etc. That IRS audit letter is about 14 pages long, maybe even longer. You just go through it and answer the questions honestly and you’re going to win this thing because the bottom line is you are the custodial parent.
If you feel uncomfortable with the paperwork – it looks intimidating, get some help. But don’t be afraid, you’ve got this. Good luck!